A Reporter's Field Guide

What is the extent of the right to gather news?

The question arises on a daily basis for journalists around the country: reporters and photographers are told by police that they cannot enter a crime scene, are threatened with arrest for not moving where police order them to move, or are ordered out of a building or an area where a newsworthy event is taking place.

Unfortunately, courts have not been good at clarifying what the newsgathering right entails. In a landmark case about the reporter's right to keep sources confidential, Branzburg v. Hayes, the U.S. Supreme Court court noted: "We do not question the significance of free speech, press, or assembly to the country's welfare. Nor is it suggested that news gathering does not quality for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated." The Court introduced this defense of a free press simply to state that forcing reporters to testify about sources is not covered by this constitutional protection. And in the years since the 1972 Branzburg decision, the high court has never spelled out that protection.

In two subsequent cases involving media access to prisons -- Pell v. Procunier and Saxbe v. Washington Post -- the Supreme Court declined to extend this access right any further. The majority of the court concluded that as long as restrictions treat the media and public equally, they raise no constitutional questions.

After the prison access cases, the Court later found in Richmond Newspapers Inc. v. Virginia that the public and media have a First Amendment right to attend criminal judicial proceedings, which reinforces the idea that newsgathering is constitutionally protected. And in Globe Newspaper Co. v. Superior Court, the Court noted that because the right to publish news depends on the ability of the media to gather information, restrictions on the right to gather news diminish the right to publish. But these standards have been so far limited to the realm of access to court records and proceedings, and, in fact, the high court has not extended the access right to civil proceedings.

Some lower courts have granted the media special newsgathering privileges in specific situations where the public does not have access. But most of these decisions fail to clearly define the scope and nature of these privileges.

So what does this mean as a practical matter to the average journalist? Courts will generally defer to police and other officials if they interfere with reporters in the name of managing an emergency scene or protecting the public, but should protect reporters from "arbitrary" interference with newsgathering. But reporters should remember that they will never convince an officer on the scene that their First Amendment rights are being violated. Usually, the only remedy is an after-the-fact discussion with officials or a lawsuit.

This guide does not cover issues of liability that journalists may face for publishing information, such as lawsuits for libel or invasion of privacy. Instead, it looks at some of the common newsgathering scenarios encountered by journalists and discusses the law that applies.